Chenoweth Denounces American Heritage Rivers Initiative

Congresswoman Helen Chenoweth's Statement to the U.S. House of Representatives on the American Heritage Rivers Initiative, June 10, 1997

WASHINGTON D.C.--In another blatant move against the people of the United States, President Clinton has attempted to unleash a plan that would place an unprecedented federal stranglehold on private property owners.
On May 21, Clinton, Gore and the Council on Environmental Quality (CEQ) published in the Federal Register a plan to create the American Heritage Rivers initiative by presidential proclamation. Since Clinton’s announcement in his State of the Union Address that he will designate 10 rivers this year, the CEQ and 13 federal agencies have hammered out a new federal land use scheme under the guise of "restoring and protecting America’s Rivers."
According to Liberty Matters, a pro-America organization, the key points in the plan are:
* The initiative proposes to control rivers for "natural, historic, cultural, social, economic and ecological diversity."
* Encourages cooperation and approval by local governments with the lure of major federal grants.
* Nominations of rivers can come from any source in or outside a "River Community" including private citizens, educational and arts organizations, environmental organizations and elected officials.
* Designation of a river will be permanent and can include the entire river, including all tributaries that come off private property.
* Thirteen Federal Agencies will be involved in the planning, implementation, management and enforcement of the Heritage Rivers.
* Together with the agencies, a federally appointed "River Navigator" will control all land use and management activities in the designated area.
* The federal agencies will be granted "flexibility from certain bureaucratic requirements," an idea championed by Vice-President Gore, effectively allowing them to create special privileges for themselves while those affected must abide by their rules.
* Aerial photography and satellite surveillance will be used to police and expand the program.
* Finally, only the president has final approval of the initiative.
The CEQ only allowed a three-week window in which the public could respond to this new federal program. Because of this, citizens alerted their Congressional representatives which prompted the following statement from U.S. Representative Helen Chenoweth (R-Idaho) to the House on June 10. This statement has the potential to open up an entire can of worms concerning the Separation of Powers clause and the State Sovereignty issue (10th Amendment).

Congresswoman Chenoweth's Address:

I am here to talk about the White House and its Council on Environmental Quality’s latest flight from Democracy embodied in the so-called American Heritage Rivers initiative.
Mr. Speaker, there are many, many things wrong with the American Heritage Rivers initiative. Tonight, I’d like to focus on just three: Procedure, water rights and separation of powers.
The initiative purports to establish a mechanism by which President Clinton will designate as American Heritage Rivers ten rivers per year. It establishes undefined, fictional governing entities known as "water communities." These governing "water communities" will then determine the scope and size of the designation area, which can include the water shed. There are no safeguards for a de-designation, and no safeguards for private property owners within the area who object to this inclusion in the designation. I’ll discuss this later in detail.
But, first, procedure. Just days before the Memorial Day work period, the Council on Environmental Quality--an unauthorized agency existing on misappropriated funds, I might add--published the American Heritage Rivers initiative in the Federal Register. It’s in the May 19, 1997 volume, page 27253--and I urge my colleagues to read it.
Although CEQ has in the past been the primary overseer of the National Environmental Policy Act (NEPA) process, in this instance, CEQ appears to have abandoned NEPA’s threshold requirements.
As the administration knows very well, an environmental impact statement (EIS) is required any time a "major federal action significantly affecting the quality of the human environment" is contemplated. When CEQ proposes to control our nation’s waters, this is, Mr. Chairman, a "significant" action.
Yet, to my knowledge, CEQ has not even bothered to address NEPA’s threshold question. Where is the environmental assessment? How about an EIS? Or at the very least--the barest recognition of NEPA--a finding of no significant impact?
Instead, Mr. Speaker, what CEQ has given us is a mere three week public comment period--the May 19 date of publication to the June 9 close of the public comment-- with NO NEPA documentation.
The Administration Procedures Act (APA), applicable to any agency action, requires a minimum of a thirty-day public comment period. And in general, unless there is an emergency, NEPA’s environmental impact statement requires a 90-day public comment period. Yet, here, CEQ blatantly violates the APA and offers a mere three weeks for the comment period. I am not aware of an emergency. Why the rush?
This violates the Administrative Procedures Act and totally ignores the National Environmental Policy Act.
Fortunately, Mr. Speaker, Chairman Don Young of the Resources Committee and Bob Smith of the Agriculture Committee, along with myself and other Resources Subcommittee Chairmen, sent a letter to Katy McGinty "strongly advising" CEQ to extend the comment period at least another 90 days. She would be wise to follow our advice. I entered the letter into the record on Wednesday, June 4.
Additionally, I am aware of no fewer than thirty-five other members making similar extension requests to CEQ. It would certainly be in the best interest of everyone involved if CEQ would extend the public comment period, and I urge them to do so.
Mr. Speaker, CEQ’s comment period closed yesterday. Today, I have yet to hear if this council has decided to extend its comment period to the legally required length. I read a news account of how baffled CEQ is by the concerns we have raised. Perhaps if the comment period were extended, enlightenment would follow.
Resources Chairman Don Young has also called an oversight hearing for June 26, 1997. I have at least a glimmer of hope that we will then have some of our questions answered--but I won’t hold my breath.
The last procedural point I’d like to point out, Mr. Speaker, is that CEQ has responded to some of these concerns by claiming that the American Heritage Rivers initiative is not a "program," but some other hybrid that does not require a rule. Indeed, CEQ officials have stated that this initiative did not even require a publication in the Federal Register. To this I say: WRONG, absolutely wrong. Procedurally, I would like to point out that the law--the United States Code that even CEQ is bound by--defines a rule as: "The whole or part of an agency statement of general or particular applicability and future affect designed to implement, interpret, or prescribe law or policy or describing the organization, procedure, or practice requirements of an agency..."
Mr. Speaker, despite CEQ’s claims, this so-called initiative is indeed "an agency statement of general ... applicability and future effect designed to implement and describe the organization, procedure and practice ... of an agency..."
As they say, Mr. Speaker, if it walks like a duck, talks like a duck and swims like a duck, then it must be a duck, Mr. Speaker.
The American Heritage Rivers initiative is indeed a DUCK!!!
It is without a doubt a rule within the meaning of 5 USC; 551 (4), and is therefore an agency action subject to the procedural requirements under the Administrative Procedures Act and the National Environmental Protection Act. Again, where is the NEPA documentation? Where is the adequate public comment?
And lastly, the newly enacted Congressional Review of Agency Rulemaking Act, 5 USC 00 801 et al., requires that "the Federal agency promulgating such a rule shall submit to each House of the Congress and to the Comptroller General a report."
To my knowledge, this has not been done. Why? Because CEQ claims it is not a rule? Again, Mr. Speaker, if it walks like a duck...
Procedurally, Mr. Speaker, this proposed American Heritage Rivers initiative is a disaster. The next issue I’d like to discuss is the issue of water and water rights. This necessarily implicates private and state property.
Mr. Speaker, as I said last Wednesday, one of the reasons for America’s strength and meteoric rise is because of the wise use of her rivers and waterways for irrigation, travel, recreation, power, flood control and all other uses. Through the wise use and allocation of water, America has literally turned our deserts into gardens, and once in-hospitable land into wonderful places to live and recreate.
In my state of Idaho, water is the absolute life-blood of the state. We have more than 15,000 farms and more than three million irrigated acres. That’s larger than the sum total of many states. Nearly forty thousand individuals are employed, in one way or an other, by agriculture.
And, Mr. Speaker, many people don’t know this, but Idaho has a seaport. The Port of Lewiston--and its two adjacent ports--via the Snake and Columbia rivers--export 40 percent of America’s grain exports to Asia. This is water (barge) transportation. Yes, Mr. Speaker, water is important to the state of Idaho.
Mr. Speaker, Idaho’s waters, water ways and reclamation projects, help make Idaho the "Gem State." Water is in fact so important that the Idaho Constitution--as approved by Congress when Idaho entered the Union--expressly states that "The use of all waters...[is] subject to the regulations and control of the STATE..."
Additionally, Idaho Code 42;101 states: "All the waters of the state, when flowing their natural channels, including the waters of all natural springs and lakes within the boundaries of the state, are declared to be the property of the state, whose duty it shall be to supervise their appropriation and allotment to those diverting the same therefrom for any beneficial purpose."
Clearly, water within the boundaries of the state of Idaho are, unless privately owned, property of Idaho. How then can the Clinton administration designate something that is not the federal government’s? This is an assault to private property rights, states' rights, and western values.
Quite simply, this initiative will simply replace the long established and Constitutionally protected policies that govern the use of our waterways--which are critical to our economic survival, not only to the west, but to the entire nation.
That is why for the past century the Supreme Court has held in case after case that in the west it is the states who control the use of water.
As I did Wednesday, let me quote from one of the seminal U.S. Supreme Court cases on this issue, the 1978 California vs. U.S.:
"The history of the relationship between the federal government and the states in the reclamation of the arid lands of the western states is both long and involved, but through it runs a consistent thread of purposeful and continued deference to state water law by Congress. Indeed, to take from the legislatures of the various states and territories the control of water at the present time would be something less than suicidal. If the appropriation and use were not under the provisions of state law, the utmost confusion would prevail."
Mr. Speaker, I couldn’t agree more. How can the Clinton administration assert control over something it clearly does not own, and so important to our states?
To make matters worse, this initiative is not just limited to the rivers. It redefines communities, water-sheds, and jurisdictional boundaries. It creates a governing entity called the "river community"--but what is the river community, Mr. Speaker? Who belongs? Don’t believe for a moment that a "river community" will be made up only of the people who make their living from and are dependent on our rivers.
Mr. Speaker, this fictional entity, the "river community," will then define the area covered by the American Heritage River designation. They decide the "length of the area, whether it be an entire watershed, the length of an entire river, or a short stretch of a river, and may cross jurisdictional boundaries."
Apparently when it comes to rivers, the Clinton administration believes that it takes more than a village; it takes a "river community."
When someone sitting in New York city can appeal land management decisions in the west, such as timber sales and grazing allotment plans, with a mere postcard, who is it that the Clinton administration will decide is a member of the "river community?" What interests will the members of the "river community" have? Also, how will the designation be made?
Watershed, as we all very well know, Mr. Speaker, can literally be from mountain top to mountain top. What about the private property inside the water shed? If a private property designation is being contemplated, will the private owner be able to protect and sustain his ownership rights? No, he won’t. I have learned, Mr. Speaker, through my inquiries that this designation could happen even over the objections of a homeowner, shop owner, farmer or rancher. And what about state and local property?
Mr. Speaker, an American Heritage River designation will further dilute local control and decision making. It will do nothing but add another layer of bureaucracy that must be dealt with; another hurdle to overcome when an entity, the private land owner or the state, desires to utilize the land.
CEQ has argued that the designation carries no legal meaning. I disagree. The very designation creates yet another obstacle, legal or not; and yet another tool for the use by environmental extremists to stop the wise-use of our lands.
Mr. Speaker, the Supreme Court recognized the importance of water to the arid western United States. Why can’t the Clinton administration respect this supreme law of the land?
As the Supreme Court stated, "The legislative history of the Reclamation Act makes it abundantly clear that Congress intended to defer to the substance, as well as the form, of state water law...(to do otherwise) would trivialize the broad language and purpose of the Reclamation Act."
In other words, Mr. Speaker, "the utmost confusion will prevail."
The final issue I would like to talk about tonight, Mr. Speaker, is the wisdom of our Founding Fathers as embodied by the doctrine of the Separation of Powers.
As I learned it, the legislative branch creates the laws, the executive branch is to implement and enforce the laws, and the judiciary interprets the laws. Yet, the American Heritage Rivers Initiative was created and tendered solely by the White House and executed without Congressional approval. When it comes to our resources issues, the Clinton Administration has once again usurped the Congress’s lawmaking authority. Nowhere in law can one find the American Heritage Rivers initiative. Nor has Congress conferred to CEQ the power to govern and control our rivers and watersheds.
This raises some very, very serious issues. Going beyond who and how this program is authorized, but how is it paid for?
Since the American Heritage Rivers Initiative has never been authorized by Congress, exactly which land and water programs funds were siphoned to prepare this proposal? How does the administration intend to continue funding this unauthorized project if it is established?
CEQ has stated that this program is merely a coordination of existing and ongoing federal programs. Yet, the American Heritage Rivers Initiative assigns a so-called "river navigator"--a federal official--to the "river community" to help guide it toward presidential designation. But I challenge the CEQ to show me where it is that the Congress has authorized a "river navigator."
And it would be foolish to believe that these "river navigators" work for free. Who authorized this position, who appropriated funds?
My concern, Mr. Speaker, is that funds needed for on the ground management activities--such as range-cons, engineers, biologists and foresters--are being misdirected (siphoned if you will) from other legitimate and authorized programs.
Similar to other so-called "initiatives" unauthorized by Congress--the Interior Columbia River Basin Ecosystem Management Project comes to mind ... at a cost of hundreds of millions of dollars--the Administration is again operating ultra vires and is misusing taxpayer’s dollars.
This program is a misappropriation of time, resources and the taxpayer’s money. You can be assured that we will be addressing each of these three issues at the June 2 Resources Committee hearing.
CEQ has stated that if any "legitimate" opposition were to surface against the designation--including opposition by the Member of Congress representing the proposed area--the proposal would not go forward.
Pardon me, Mr. Speaker, if this doesn’t give me much comfort. For the record, I oppose any designation of an American Heritage River in the state of Idaho! But I call the Members’ attention to President Clinton’s designation of the Grand Staircase-Escalante National Monument in Utah.
Despite CEQ’s protestations the opposite, not one of the members of Utah’s congressional delegation nor the governor were informed of this pending action. The Resources Subcommittee on National Parks and Public Lands, of which I am a member, held a hearing in which Senators Hatch and Bennett, Utah Governor Leavitt, Secretary Babbitt and CEQ Chairman Katy McGinty testified.
In the face of both the Utah Senators and Governor, Chairman McGinty stated she informed them of the impending Monument designation. All three clearly and unequivocally stated that they were not informed. At best, the administration acted without consulting the leaders of the state of Utah. At worst, President Clinton acted over the unified objection of the state.
Nonetheless, whether Utah’s delegation knew or not is no matter (and I tend to believe Messrs. Bennett, Hatch and Leavitt had no prior knowledge), CEQ’s promises that only a community that wants the designation are empty. Its promises leave me with very little comfort.
The American Heritage Rivers proposal is just one in a string of Clinton administration attacks on the western public land states.
This is a nation of laws, but from the Utah Monument, Ecosystem (whatever that means) Management Projects, to BLM’s Law enforcement regulations, this administration has demonstrated an absolute lack of regard for our nation’s laws and regulations, including requirements of environmental law. Mr. Speaker, the administration has blatantly ignored Congress’s lawmaking authority, and the American Heritage Rivers Initiative is just one more example.
Take, for instance Secretary Babbitt’s attempted rewrite of 43 CFR 3809 pertaining to surface mining. Secretary Babbitt has stated publicly that he did not need the Congress to help rewrite the Mining Law of 1872, but that he could do it administratively.
Mr. Speaker, we cannot allow the administration to ignore this body. Without a check on the executive branch, this nation will continue down the road to chaos.
And unless the Congress asserts its Constitutional responsibilities, it is well on its way to becoming a toothless tiger--capable only of doling out the taxpayer’s hard earned dollars to fund big bureaucracy like the CEQ.
As James Madison wrote in Federalist No. 47: "The accumulation of all powers legislative, executive and judiciary in the same hands, whether of one, a few or many, and whether hereditary, self appointed, or elective, may justly be pronounced the very definition of tyranny."
Mr. Speaker, in the name of Separation of Powers, in the vein of preserving Congress’s lawmaking authority, and for the good of our country, we must take a stand. We must draw a line and simply say: NO! We will not let you do that! We must say to the administration, you must act only within your authority.
Mr. Speaker, we are a nation of laws. As such, we must all follow them, especially the government.
Tonight, I, along with a number of our colleagues, am introducing H.R. 1842. This bill will prohibit any funds from being spent by the administration on the American Heritage Rivers Initiative. I urge the Members to join us on the Chenoweth-Pombo disapproval of the American Heritage Rivers Initiative.
In closing, Mr. Speaker, I can only say, she simply doesn’t get it. When one sees a person in her position state that it is "government" acting in partnership with the local communities, I have grave concerns. We do not want another federal designation. We do not want a greater federal presence. And we do not want enhanced federal control over our waters.
This is not what this Congress is about. The spirit of this Congress is the revitalization of the 10th Amendment, the empowerment of local communities and states, and the recognition that the federal government is one of limited and enumerated powers. It is NOT about another Washington D.C. created designation of our resources. It is NOT about yet another sphere of influence for federal bureaucrats. And it is certainly NOT about a federal government partnership when the state and local communities are quite capable of governing themselves.
This Congress is about less government, self-determination, and freedom. It’s about states’ rights, property rights, and the right of the people to be free of federal entanglements. And the American heritage Rivers initiative does not fit this bill.
Mr. Speaker, this issue is about control--control over our rivers and watersheds. If the federal government wants control of the states’ waters, then what’s next?
And if anyone thinks that this CEQ so-called initiative will be anything but a tool of the environmental extremists, they had better think again. Just today I read that an organization dedicated to tearing out the dams and transportation waterways along the Snake and Columbia rivers have already petitioned the White House to designate the Columbia as an American Heritage River. This would end the water-based (barge) transportation affecting jobs, communities, and families. This is an issue of control.
What’s next, Mr. Speaker. Part 11, #2 calls for aerial and satellite surveillance of the rivers. Will I have to wear a number on my hat so the federal bureaucrats in Washington, D.C. using aerial photographs, can monitor when I’m out skipping rocks on the river with my grandchildren?
What next?
Yes, Mr. Speaker, this issue is indeed about control of resources, our wealth, and people’s lives.
As I discussed earlier, water is the lifeblood of the west and the lifeblood of Idaho. But it is not just control over water that is threatened by this un-American "make our backyard every bureaucrat’s business" Heritage Rivers Initiative.
Nothing less than private property rights and freedom from unnecessary and harmful federal intrusion is at stake. Farmers, ranchers, fishermen, homeowners and others who live along rivers and deeply love their rivers may find themselves with diminished rights and reduced control over their property and their activities on the river.
Mr. Speaker, these people--the ones who know their river and depend on its health and preservation--should not lose their rights because federal bureaucrats or eastern environmentalists want to initiate a warm and fuzzy, politically correct federal program or another Clinton photo-op.
State sovereignty, individual freedom and protection of property rights are the ideals that have distinguished this nation. We do ourselves and all American citizens a disservice if we allow power to be usurped in this fashion.
I urge my colleagues to stand up against this ill-conceived and misdirected American Heritage Rivers Initiative, and to cosponsor the Chenoweth-Pombo bill.
Mr. Speaker, the imposition of the Clinton/Gore extreme environmentalist policies has taken a tragic toll in the West. We’re losing our culture, our heritage and our very way of life we love so much.
My good friend Perry Pendley sums up the feeling in the west when, in his book War on the West, he writes (and I quote):
The environmental extremists' vision of the west is a land nearly devoid of people and economic activity, a land devoted almost entirely to the preservation of scenery and wildlife habitat. In their vision, everything becomes a vast park through which they might drive, drinking Perrier and munching organic chips, staying occasionally in the bed-and-breakfast operations into which the homes of Westerners have been turned, with those Westerners who remain fluffing duvets and pouring cappuccino. They are well on their way to achieving their objective.
Mr. Speaker, I think Perry Pendley hit the nail on the head. Many people in the United States east of the Mississippi just view the west as one big national park and the American Heritage Rivers Initiative is just one more assault in a long line of programs designed to turn the west into a playground for the east.
Thank you very much, Mr. Speaker. I yield back the balance of my time.